Dr Liz Campbell, senior lecturer in criminal law and evidence, University of Edinburgh, firstname.lastname@example.org Author of Organised Crime and the Law: A Comparative Analysis, Hart, 2013.
Since the murders of Veronica Guerin and Jerry McCabe in 1996, organised crime has not strayed far from the top of the political agenda and from popular debate on law and order in Ireland. It is the legal means of dealing with such criminality, both in Ireland and UK, that form the focus of my recent book Organised Crime and the Law: A Comparative Analysis. In it I present a novel, contextualised analysis of the legal measures used address this phenomenon in the UK and Ireland, and situate these laws as part of wider trends in the criminal justice realm.
As I examine in the book, organised crime is a contested concept: nonetheless the term is viewed generally as encompassing systematic illegal behaviour, carried out by a group motivated by profit, usually underpinned by the threat or use of violence. In additional to these definitional ambiguities, relevant crime statistics in Ireland are complex and do not indicate a clear trajectory in recent years. Even so, the widespread perception is that organised crime is ever worsening, that organised crime groups are more violent, ruthless and sophisticated, and that the State is constrained in addressing this type of criminality effectively. In particular, due process protections in the criminal process are regarded as stymying successful investigation and prosecution. This leads to the conclusion that robust and innovative legal reactions are warranted to prevent, identify and punish such crime.
Indeed, it is clear that actions perpetrated by criminal organisations are more problematic than those by individuals. Groups can capture significant market power and thereby generate considerable profits from illicit products; the likelihood of detection is diminished because of the dispersal and subdivision of tasks, and there is an increased possibility of violence to evade detection and ensure compliance, whether that is against police officers, the public, witnesses, jurors, or other members of the group. Moreover, criminal groups are more likely to corrupt officials and to displace legal means of dispute resolution. Collaborating to act as a part of a group means that the offence is more likely to be completed through the commitment to the group. Furthermore, absence or withdrawal of an individual will not usually stymie the plans – the organised crime group and its actions are larger than the sum of its parts, so to speak.
As I suggest in my book, organised criminality may in fact pose special types of problems as regards policing and prosecution. So, any liberal state seeking to address such serious criminality must contend with the ineluctable tension, in Packer’s terms, between crime control and individual due process protections. Indeed, too often a false dichotomy is set up, whereby security is seen as distinct from liberty, and as not encompassing individual rights also. In other words, the security of the citizen is viewed as comprising safety from criminality only, rather than also encompassing protections from the state and its institutions. Overall, the protections in the criminal justice system are seen as compromising effective crime control, rather than as critical aspects of a liberal justice system that is predicated on the presumption of innocence and limited stated interference. Moreover, the situation is often presented as a zero-sum game, where measures protecting suspects denigrate victims and the ‘law abiding’ community; conversely, abrogation of such protections often are seen as benign developments.
In Ireland, as has occurred elsewhere, various flurries of legislative action prompted by concern about organised crime have made changes to all stages of the criminal process, from investigation to sentencing. In addition, some broadly framed counter-terrorism measures are used in the context of organised criminality, or provide a prototype that is emulated in subsequent laws. Many of these measures are controversial in a rights sense, others are questionable in terms of their effectiveness while other are implemented inconsistently.
For example, the possibility of juror intimidation means that organised crime cases sometimes involve judge-only trials in the Special Criminal Court. Though this scheme has an equivalent in the UK (except in Scotland), the legislation is drawn and interpreted more tightly. In Ireland, the Director of Public Prosecutions (DPP) may order such a trial under the Offences against the State Act 1939 if she believes the ordinary courts are inadequate for the administration of justice and the preservation of public order. There is no appeal against this, as long as the DPP’s decision is made in good faith. In addition, certain organised crimes, such as directing a criminal organisation, now lead automatically to juryless trials under the Criminal Justice (Amendment) Act 2009. Though protecting jurors from potential harm of course is understandable, this is problematic in terms of the right to equality, as was emphasised by the UN Human Rights Committee. Moreover, there is no empirical evidence on the extent of juror intimidation, nor has there any appraisal of alternatives to jury abolition, such as through the use of anonymised juries, or the use of CCTV.
In addition to the alteration of trial processes, the means of tackling organised crime has moved into the civil context through the use of asset forfeiture. This provides the focus for chapter seven of my book. The logic behind such a mechanism is to target and seize the wealth that underpins, motivates and sustains organised crime. Drawing on examples from the US and from a domestic measure introduced to deal with paramilitary funds in the mid-80s, the Criminal Assets Bureau was established in 1996 to seize and retain property believed to be the proceeds of crime. Critically, there is no need for a criminal conviction, and evidence must be proved on the balance of probabilities (rather than beyond reasonable doubt, as in criminal trials).
The legality of civil forfeiture is beyond dispute, given it has withstood challenge in domestic and European courts. Moreover, its recouping of assets for the public coffers and its targeting of unexplained wealth mean this is a hugely popular response to organised crime. Nonetheless, I suggest in the book that civil forfeiture is problematic, as it is essentially a criminal measure under another name. It focuses on allegedly criminal behaviour, and so the blameworthiness of the individual seems pivotal, as in criminal cases. And, although there are preventative and reparative elements, it involves condemnation, retribution and deterrence, which are the aims of criminal punishment. Furthermore, the link between the Gardai and CAB undermines claims that the process is civil in nature. CAB is a hybrid of state agencies and authorities, including the Garda Siochana and it has significant powers of investigation. These factors indicate that asset forfeiture is not civil in nature, and so the individuals whose property is targeted should be entitled to due process protections.
Normatively speaking, my book adopts a liberal, due process stance, and stresses the need for caution in addressing organised crime. Essentially, what appears to be occurring across Ireland and the UK is the prioritisation of the demands of security and the resolution of crime. Having said that, due process protections and criminal processes are not fixed or static, and of course some degree of amendment may be necessary. However, what appears to have occurred in Ireland is a dramatic heightening of public concern and the concomitant introduction of robust measures which are dubious in a rights’ sense but which are also not predicated on a solid evidence base. While we may be rightly concerned about systematic, grave criminality, we should be wary in extending the powers of the state in this manner.